Saturday, 20 August 2016

The recent CJEU judgment
in VKI v Amazon concerns jurisdiction
both in the context of conflict of laws (applicable consumer laws) and the Data
Protection Directive. Essentially,
the Court of Justice had to decide which Member State’s data protection law
should apply where goods are sold across national borders but within the EU. In
this, it forms part of a stream of case law (both decided and pending), dealing
with the powers of states (and their institutions) to protect those within
their boundaries notwithstanding the digital internal market.

Facts

The case concerned Amazon, a well-known
large company engaged in on-line selling. It has a branch established in
Luxembourg. It has a domain name ending
‘.de’ and there is a German language page.
It concludes sales with customers in Austria. The company has no
registered address in Austria. Whenever
a customer buys goods via Amazon the transaction is governed by Amazon’s
unilaterally imposed standard terms and conditions. One term in the agreement
is that the law applicable to the contract is that of Luxembourg.

A consumer protection body in
Austria (VKI) sought to challenge this: Austrian law provides higher protection
for the consumer than the equivalent Luxembourgish law and it sought to injunct
Amazon on the basis of Directive
2009/22/EC on injunctions for the protection of consumers’ interests through
an action brought before the Austrian courts. Amazon countered that it has no
legal connection with Austria – it is not established there. While there were questions regarding the
applicable law and the fairness of the jurisdiction clause in the contract in
the light of the Unfair
Contract Terms Directive, there was another issue concerning data
protection. There were clauses in Amazon’s standard terms and conditions which
indicated that data might be exchanged with credit-risk assessment and
financial services companies in Germany and Switzerland. Again VKI argued that Austrian data
protection rules should apply.

Questions Referred

While on the face of it, the
matter might seem to be one of contract law therefore governed by the Rome
I Regulation on the law applicable to contractual obligations, the form of
relief sought – the injunction – might seem to bring the question within the Rome
II Regulation, which regulates the law applicable to non-contractual obligations – a fact which might affect the outcome
in the case. The national court asked
whether an action for an injunction fell within Rome II and if so, where the
damage might said to have taken place so as determine jurisdiction. Irrespective of the outcome to that question,
the referring court also asked about the impact of the Unfair Contract Terms
Directive on the jurisdiction clause. It likewise also wanted to know whether
the processing of data should be regulated by Luxembourg alone, or must the
processor ‘also comply with the data protection rules of those Member States to
which its commercial activities are directed?’

Judgment

The ECJ dealt with the questions
on Rome I and II together. It noted that
they should be interpreted consistently with one another, as well as the Brussels
I Regulation (which concerns the separate question of which country’s court has jurisdiction in cross-border
cases). The Court referred to its
previous case law in relation to the previous Brussels Convention, and the Brussels
I Regulation replacing the Convention, to conclude that an action for
injunction within the terms of Directive 2009/22/EC (on the protection of
consumers’ interests) falls within the meaning of a non-contractual obligation
for the purposes of Rome II. Article 6
of the Rome II Regulation deals with unfair competition. In that circumstance, the law applicable is
that ‘of the country where competitive relations or the collective interests of
consumers are, or are likely to be, affected’.
The Court followed the Advocate General (Opinion,
para 73) to hold that Article 6(1) covers the use of unfair terms inserted in
standard terms and conditions, as ‘this is likely to affect the collective
interests of consumers as a group and hence to influence the conditions of
competition on the market’ (para 42). Here the relevant country is that where
the consumers to whom the undertaking directs its activities reside and who are
protected by the relevant consumer protection body (para 43).

Article 4(3) of the Rome II Regulation
states that the law of another country applies if it is clear that the tort is
manifestly more closely connected with it.
The ECJ approved the approach of the Advocate General (para 77) where he
advised that Article 4(3) is not well suited to unfair competition. Article 6
is aimed at protecting collective interests and cannot be displaced by
individual agreement (para 45). Allowing
the term of a contract to constitute ‘closer connection’ for the purposes of
Article 4(3) would mean that such parties would be able to avoid the conditions
for ‘freedom of choice’ set down in Article 14 Rome II.

The question of which law applies
to the assessment of the unfairness of the contractual terms, however, falls
under Rome I, whether or not it applies to a collective or individual action.

The Court then considered the
Unfair Contract Terms Directive (Directive 93/13). That Directive contains the
principle that a contractual term which has not been individually negotiated –
that is, drafted in advance by the seller/supplier - must be regarded as unfair
if it causes a significant imbalance to the detriment of the consumer. The
Court agreed with the Advocate General (Opinion para 84) that the terms in
issue here fell within that definition (para 63). The question of unfairness is
to be determined on the facts by the national court within the scope of
criteria determined by the Court of Justice. Since choice of law clauses are in
principle permissible, such clauses are only unfair if its wording or context
creates an imbalance – so if it is not drafted in intelligible language or if
it seeks to deprive consumers of protections from which it would not be
possible to derogate. Here, this means
that in relation to an Austrian consumer, the national court will ‘have to
apply those Austrian statutory provisions which, under Austrian law, cannot be
derogated from by agreement’ (para 70).

The Court then turned to Article
4 of the Data Protection Directive. Under Article 4, each Member State
regulates processing carried out in the context of activities of an
establishment in that Member State. Essentially the question is whether Amazon
was established in Austria. The Court referred to its recent Weltimmo judgment, discussed here,
which ruled that an undertaking does not need to have a branch or
establishment. Rather, it is a question
of the stability of the arrangement and the effective exercise of activities
(para 77) that is important. Further,
Article 4 does not require that the processing is carried out by the
undertaking itself; the test is whether processing is carried out in the
context of its activities (para 78).
This is a question of fact for the national court.

Comment

In terms of the importance of
this judgment, we should note that the facts in issue are not uncommon – many
on-line businesses have headquarters in one Member State but conclude contracts
across multiple Member States.

As regards the questions relating
to applicable laws generally, we are now in a situation where national courts
may have to assess questions pertaining to injunctions according to a different
law from that relating to the contract itself.
This is not surprising, given case law in other fields, but it is the
first confirmation of this point in the e-commerce context. As an aside, it is also the first judgment on
the Directive on injunctions for the protection of consumers’ interests. It is worth noting that the Court seemed
critical of attempts to bypass the protection in Article of 6 Rome II through
the notion of ‘manifestly closer connection’ in Article 4(3). It also specifically excluded the choice of
law clause in the agreement as a determining factor in this regard too.

Perhaps the most interesting
aspect is, however, the data protection aspect.
The Court did not go into much detail (perhaps signalling behind the
scenes disagreement) and there are some curious silences as to some points
touched upon by the Advocate General.
The Advocate General had in fact suggested that Article 4 had a ‘dual
role’ (Opinion para 110). So while Weltimmo might apply to determine
applicable law, the broad approach to ‘establishment’ found in GoogleSpain
to determine the outer territorial limit of the Data Protection Directive did
not apply to the intra-EU setting. The
driver for the decision in GoogleSpain
was a desire to ensure that the Data Protection Directive applied at all; it
was therefore relevant to external processors (Opinion, para 124). In this case, if the Austrian laws did not
apply then the laws of one of the other Member States would and so the
extensive approach would not be necessary.
This distinction was an innovation on the part of the Advocate General;
it was certainly not visible in Weltimmo
in which the Court relied on its reasoning in GoogleSpain, and nor was it apparent from GoogleSpain. Further, the
Advocate General seemed to be more stringent about finding ‘establishment’ than
the Court in Weltimmo. For example, the fact that Amazon may provide
an aftersales service in Austria on its own was insufficient in his view
(Opinion, paras 121 and 125); he also discounted the possibility that the
accessibility of a website was likewise insufficient for this purpose (Opinion,
paras 117 and 120).

Against this background, the
silence of the ECJ on the internal/external point is striking, especially given
the repeated references to the Opinion through the rest of its judgment. So is its silence on the subject of GoogleSpain. The Court’s reasoning is
grounded only on Weltimmo. On the one hand, we could argue that the
Court has not agreed with the distinction put forward by the Advocate General,
but by not applying GoogleSpain
directly here, it has not ruled it out either. Note that the Article 29 Working
Party (the advisory body set up by the data protection Directive) had applied
the extensive interpretation from GoogleSpain
in its updated
Opinion 8/2010. The Court here also gave no further guidance on the topic
of establishment, taking convenient refuge no doubt in the point that its role
is to interpret EU law and not to assess facts.

Friday, 19 August 2016

Rule of law aficionados among the
readers of this blog may be interested in getting access to the full text of
the yet unpublished Commission Opinion regarding the Rule of Law in Poland
adopted on 1 June 2016, which is published as an Annex to this blog post.

To enable non-experts to quickly understand
what is at stake, this post will briefly describe the instrument on the basis
of which the Commission has adopted this Rule of Law Opinion before succinctly
recalling why the Commission deemed it necessary to formalise its concerns as
regards the rule of law in Poland. A short summary of the Commission’s rationale
used to turn down my initial request for access to this Opinion under
Regulation 1049/2001 (concerning public access to EU documents) will also be
provided.

(1) The EU’s Rule of Law Framework in a nutshell

To deal with what a number of EU officials
have described as an increasing number of rule of law crises, the European
Commission adopted a new
framework to strengthen the rule of law in March 2014. The Commission explicitly
designed this new instrument to deal with situations where ‘a systemic threat
to the rule of law’ may be detected in a Member State. Soon afterwards, Frans
Timmermans was appointed First Vice-President of the European Commission in
charge of, inter alia, the Rule of Law.

The Commission’s rule of law framework
takes the form of an early warning tool whose primary purpose is to enable the
Commission to enter into a structured dialogue with the relevant Member State.
The overall aim is to prevent any emergent systemic threat to the rule of law
from developing into a situation where there is a clear risk of a serious
breach of EU values laid down in Article 2 TEU. This procedure is supposed to
precede the eventual triggering of what is often (albeit misleadingly) labelled
as the ‘nuclear option’ laid down in Article
7 TEU (namely the suspension of a Member State’s rights for violating EU
values), hence the informal label of ‘pre-Article 7 procedure’ given to the
2014 Framework.

With respect the mechanics of this
new ‘pre-Article 7 procedure’, there is a three-stage process initiated and
conducted by the Commission: (1) assessment; (2) recommendation and (3) follow
up. During the first stage of the procedure, the Commission may decide to send a
‘rule of law opinion’ to the national government of the Member State concerned
if there are clear indications of a systemic threat to the rule of law. In the
situation where the matter has not been satisfactorily resolved, the Commission
may then adopt a ‘Rule of Law Recommendation’ and indicate ways and measures to
resolve the situation within a prescribed deadline. Finally, the last phase
foreseen by the framework consists of the Commission’s monitoring of the
implementation of any recommendation previously adopted. Should there be no
satisfactory implementation, the Commission would then have the possibility of
triggering the Article 7 TEU mechanism.

(2) First activation of the Rule of Law Framework against Poland

On 13 January 2016, Frans Timmermans
announced the Commission’s decision to carry out a preliminary assessment of
the situation of the Polish Constitutional Tribunal under the Rule of Law
Framework. This was the very first time this new instrument had been activated.
The primary justification for this unprecedented step was the fact that binding
rulings of the Polish Constitutional Tribunal were no longer respected by the
government - ‘a
serious matter in any rule of law-dominated state’ according to the First
Vice-President of the European Commission. A period of intensive but
confidential dialogue between the Commission and Polish government followed. In
the absence of any concrete steps taken by the Polish government to address its
concerns, the Commission deemed it necessary to formalise its assessment of the
situation in Poland by adopting a ‘Rule of Law Opinion’ on 1 June 2016. The Polish
government was then invited to submit observations with the view of
satisfactorily resolving the Commission’s concerns within a reasonable time. The
text of the Commission Opinion was however not publicly released at the time.
It was rather announced via a press release.

(3) Application for access to the full text of the Commission Opinion

My initial request to gain access
to the full text was rejected by the Commission on the ground that the disclosure
of the Commission Opinion of 1 June 2016 ‘would undermine the protection of the
purpose of the ongoing investigation’ as any disclosure ‘at this point in time
would affect the climate of mutual trust between the authorities of the Member
state and the Commission, which is required to enable them to find a solution
and prevent the emergence of a system threat to the rule of law’ (my
application was lodged on 7 June 2016 and turned down on 18 July 2016). Partial
access was also rejected on the same ground.

This reasoning is not unreasonable.
The Commission’s Communication regarding the Rule of Law Framework itself
provides that ‘while the launching of the Commission assessment and the sending
of its opinion will be made public by the Commission, the content of the
exchanges with the Member State concerned will, as a rule, be kept
confidential, in order to facilitate quickly reaching a solution.’ While the
reference to ‘exchanges’ may be understood as suggesting that the Commission
did not intend to keep any Opinion itself confidential but rather the mere
‘exchanges’ between itself and a relevant government, one may accept that a certain
degree of confidentiality could in principle help at this particular juncture.

That being said, the Commission’s
initial refusal to disclose the full text of the Rule of Law Opinion of 1 June
2016 was difficult to reconcile with the full disclosure on 11 March 2016 of
the Venice Commission’s Opinion on amendments to the Act of 25 June 2015 on the
Constitutional Tribunal of Poland. It also meant, more problematically, that
there could be no external scrutiny of the Commission’s action. It also
deprived Polish citizens and their national elected representatives of the
opportunity to discuss the Commission’s diagnosis and eventually work out
solutions to address the Commission’s concerns alongside their government.

Be that at it may, the Commission’s
subsequent decision to publish a Rule of Law Recommendation
on 27 July 2016 led me to ask the Commission to review their initial
refusal to disclose the Opinion adopted on 1 June 2016. I argued inter alia that
the period of ‘mutual trust’ had neither led the Polish government to cooperate
in good faith, nor produce the expected results required not only by the
European Commission but also the Venice Commission. I furthermore emphasised
that no harm would result from the disclosure of the Opinion as far as the conduct
of the Commission’s investigation is concerned following the public release of
the Commission’s Rule of Law Recommendation.

Having reviewed my application,
the Secretariat General of the Commission accepted the disclosure of the full
text of the Opinion on the basis that the exception laid down in Article 4(2)
of Regulation 1049/2001 no longer applied following ‘the Commission’s issuance,
on 27 July 2016, of a Recommendation regarding the rule of law in Poland.’

Readers familiar with the
Commission Recommendation of 27 July 2016 will quickly detect that the
Recommendation closely reflects the content of the Opinion. It does however put
more emphasis on the issue of the effective functioning of the Polish
Constitutional Tribunal following inter alia the adoption of the law on the Constitutional
Tribunal adopted by the Polish Parliament on 22 July 2016.

Professor Kochenov and I are
planning to offer readers of this blog a more comprehensive analysis of the
Commission’s Rule of Law Framework as applied in the case of Poland in November,
at which point the deadline for implementing the Commission’s recommendations
will have passed (there are clear indications that the Polish government has
opted for confrontation
over compromise with the EU and will not implement them). Meanwhile,
interested readers may find this special
rule of law issue of the Journal of Common Market Studies, and the articles
contained therein, of special interest.

Barnard & Peers: chapter 8

Photo credit: www.dw.com

Annex

COMMISSION OPINION of 1.6.2016
regarding the Rule of Law in Poland

1) Introduction

1. This opinion sets out the
concerns of the European Commission in regard of the rule of law in Poland and
provides an opportunity for the Republic of Poland to respond to these
concerns.

2. The European Union is founded
on a common set of values enshrined in Article 2 of the Treaty on European
Union, which include in particular the respect for the rule of law. The
Commission, beyond its task to ensure the respect of EU law, is also
responsible, together with the European Parliament, the Member States and the
Council, for guaranteeing the common values of the Union.

3. For this reason the
Commission, taking account of its responsibilities under the Treaties, adopted
on 11 March 2014 a Communication "A new EU Framework to Strengthen the
Rule of Law" [1 COM(2014) 158 final, hereinafter "the Communication".]
This Rule of Law Framework sets out how the Commission will react should a
threat to the rule of law emerge in a Member State of the Union and explains
the principles which the rule of law entails.

4. The Commission considers after a careful
assessment of the facts, that the following issues in Poland raise serious
concerns in regard of these principles.

Rule of Law Framework

5. The Rule of Law Framework
provides guidance for a dialogue between the Commission and the Member State
concerned to prevent the escalation of systemic threats to the rule of law.

6. The purpose of this dialogue
is to enable the Commission to find a solution with the Member State concerned
in order to prevent the emergence of a systemic threat to the rule of law that
could develop into a "clear risk of a serious breach" which would
potentially trigger the use of the 'Article 7 TEU Procedure'. Where there are
clear indications of a systemic threat to the rule of law in a Member State,
the Commission can initiate a dialogue with that Member State under the Rule of
Law Framework.

7. Case law of the Court of
Justice of the European Union and of the European Court of Human Rights, as
well as documents drawn up by the Council of Europe, building notably on the
expertise of the Venice Commission, provides a non-exhaustive list of these
principles and hence defines the core meaning of the rule of law as a common
value of the Union in accordance with Article 2 of the Treaty on European Union
(TEU). Those principles include legality, which implies a transparent,
accountable, democratic and pluralistic process for enacting laws; legal
certainty; prohibition of arbitrariness of the executive powers; independent
and impartial courts; effective judicial review including respect for
fundamental rights; and equality before the law2. [2 See COM(2014) 158 final,
section 2, Annex I.] In addition to upholding those principles and values,
State institutions also have the duty of loyal cooperation.

8. The Framework is to be
activated in situations where the authorities of a Member State are taking
measures or are tolerating situations which are likely to systematically and
adversely affect the integrity, stability or the proper functioning of the
institutions and the safeguard mechanisms established at national level to
secure the rule of law3. [3 See para 4.1 of the Communication.] The purpose is to address threats to the rule
of law which are of a systemic nature4. [4 See para 4.1 of the Communication.] The
political, institutional and/or legal order of a Member State as such, its
constitutional structure, separation of powers, the independence or
impartiality of the judiciary, or its system of judicial review including
constitutional justice where it exists, must be threatened5 . [5 See para 4.1
of the Communication.]The Framework is to be activated in particular in
situations when national "rule of law safeguards" do not seem capable
of effectively addressing those threats.

9. The Rule of Law Framework has
three stages:

·
Commission assessment: in this stage the Commission collects and examines all
the relevant information and assesses whether there are clear indications of a
systemic threat to the rule of law. If, on this evidence, the Commission
believes that there is a systemic threat to the rule of law, it will initiate a
dialogue with the Member State concerned, by sending a "rule of law
opinion", substantiating its concerns. The opinion could be the result of
an exchange of correspondence and meetings with the relevant authorities and be
followed by further exchanges.

·
Commission Recommendation: in a second stage, if the matter has not been
satisfactorily resolved, the Commission can issue a "rule of law
recommendation" addressed to the Member State. In this case, the
Commission would recommend that the Member State solves the problems identified
within a fixed time limit, and inform the Commission of the steps taken to that
effect. The Commission will make public its recommendation.

·
Follow-up to the Commission Recommendation: in a third stage, the Commission
will monitor the follow-up given by the Member State to the recommendation. If
there is no satisfactory follow-up within the time limit set, the Commission
can resort to the 'Article 7 Procedure'.

The entire process is based on a
continuous dialogue between the Commission and the Member State concerned.

Factual context

10 In November 2015, the
Commission became aware of an ongoing dispute in Poland concerning the
composition of the Constitutional Tribunal, as well as the shortening of the
mandates of its current President and Vice-President. The Constitutional
Tribunal rendered two judgments on these matters, on 3 and 9 December 2015.

11. In addition, the Commission
noted that the Sejm adopted on 22 December 2015 a law amending the law on the
Constitutional Tribunal, which concerns the functioning of the Tribunal as well
as the independence of its judges6. [6 Law of 22 December 2015 amending the Law
of 25 June 2015 on the Constitutional Tribunal. The amending Law was published
in the Official Journal on 28 December; item 2217.]

12. In a letter of 23 December
2015 to the Polish Government7, [7 Letter of 23 December 2015 from First Vice
President Timmermans to Minister of Foreign Affairs Mr Waszczykowski and
Minister of Justice Mr Ziobro.] the Commission asked to be informed about the
constitutional situation in Poland, including the steps envisaged by the Polish
authorities with respect to the above-mentioned two judgements of the
Constitutional Tribunal. As regards the amendments contained in the Law of 22
December 2015 on the Constitutional Tribunal, First Vice President Timmermans
stated he would expect that this law is not finally adopted or at least not put
into force until all questions regarding the impact of this law on the
independence and the functioning of the Constitutional Tribunal have been fully
and properly assessed. The Commission also recommended the Polish authorities
to work closely with the Council of Europe's Venice Commission8. [8 European
Commission for Democracy through Law (Venice Commission)].

13. On 23 December 2015 the
Polish Government asked for an opinion of the Venice Commission on the Law of
22 December 2015. However, the Polish Parliament did not await this opinion
before taking further steps, and the Law was published in the Official Journal
and entered into force on 28 December 2015.

14. On 30 December 2015 the
Commission wrote to the Polish Government9 [9 Letter of 30 December 2015 from
First Vice President Timmermans to Minister of Foreign Affairs Mr Waszczykowski
and Minister of Justice Mr Ziobro.] to seek additional information about the
proposed reforms to the governance of Poland's Public State Broadcasters. First
Vice President Timmermans asked the Polish Government how relevant EU law and
the need to promote media pluralism were taken into account in the preparation
of the new "small media law".

15. On 31 December 2015, the
Polish Senate adopted the "small media law" concerning the management
and supervisory boards of the Polish public television broadcaster and public
radio broadcaster. The new law modifies the rules for the appointment of the
Management and Supervisory Boards of the public service broadcasters, putting
them under the control of the Treasury Minister, rather than an independent
body. The new law also provided for the immediate dismissal of the existing
Supervisory and Management Boards.

16. On 7 January 2016, the
Commission received a response from the Polish Government10 [10 letter of 7
January 2016 from Undersecretary of State Mr Stepkowski to First Vice President
Timmermans] on the letter on the media law denying any adverse impact on media
pluralism. On 11 January, the Commission received a response from the Polish
Government on the Constitutional Tribunal reform11. [11 letter of 11 January
2016 from Minister of Justice Mr Ziobro to First Vice President Timmermans]
These responses did not remove existing concerns.

17. On 13 January 2016, the
College of Commissioners held a first orientation debate in order to assess the
situation in Poland. The Commission decided to examine the situation under the
Rule of Law Framework and mandated First Vice President Timmermans to enter
into a dialogue with the institutions of the Republic of Poland in order to
clarify the issues at hand and identify possible solutions.

18. On the same day, First
Vice-President Timmermans wrote to the Polish Government12 [12 Letter of 13
January 2016 from First Vice President Timmermans to Minister of Justice Mr
Ziobro.] informing the Government that the Commission is examining the
situation under the Rule of Law Framework and wished to enter into a dialogue
with the institutions of the Republic of Poland in order to clarify the issues
at hand and identify possible solutions.

19. On 19 January 2016 the
Commission wrote to the Polish Government13 [13 Letter of 19 January 2016 from
Commissioner Oettinger to Minister of Justice Mr Ziobro.] offering to
contribute expertise and discuss matters related to the new media law.

20. On 19 January 2016 the Polish
Government wrote to the Commission14 [14 Letter of 19 January 2016 from
Minister of Justice Mr Ziobro to First Vice President Timmermans.] setting out
its views on the dispute concerning the appointment of judges, referring inter
alia to a constitutional custom relating to the appointment of judges.
Regarding the amendment to the Act on the Constitutional Tribunal this letter
sets out its positive effects.

21. On 1 February 2016 the
Commission wrote to the Polish Government15 [15 Letter of 1 February 2016 from
First Vice President Timmermans to Minister of Justice Mr Ziobro.] noting that
the judgements of the Constitutional Tribunal on the appointment of judges have
still not been implemented. The letter also underlines the need to further
examine the amendment to the Act on the Constitutional Tribunal, in particular
the "combined effect", requesting more detailed explanations. The
letter also requests information about other laws which have been adopted
recently, in particular the new Civil Service Act, the Act amending the law on
the Police and certain other laws, as well as the Law on the Public Prosecution
Service, and about legislative reforms which are being envisaged, notably further
reforms of the media legislation.

22. On 29 February 2016 the
Polish Government wrote to the Commission16 [16 Letter of 29 February 2016 from
Minister of Foreign Affairs Mr Waszczykowski to First Vice President
Timmermans.] providing further clarifications on the mandate of the President
of the Constitutional Tribunal. The letter clarifies that the Tribunal's judgment
of 9 December 2015 states that the interim provisions of the amending law that
provided for ending the mandate of the President were pronounced
unconstitutional and lost their legal effect. As a result, the current
President of the Tribunal will continue to exercise his mandate pursuant to the
old legislative provisions until his mandate expires on 19 December 2016. The
letter also states that the mandate of the next President will be 3 years long.
The letter furthermore requests clarifications as to what the Commission means
by insisting that the binding and final judgments of the Constitutional
Tribunal have still not been implemented as well as clarifications why
according to the Commission the resolutions electing three judges of the
Constitutional Tribunal on 2 December 2015 run counter to the Tribunal's
subsequent judgement.

23. On 3 March 2016 the
Commission wrote to the Polish Government17, [17 Letter of 3 March 2016 from
First Vice President Timmermans to Minister of Foreign Affairs Mr
Waszczykowski.] providing clarifications concerning the issue of the
appointment of judges as requested by the Polish Government in the letter of 29
February 2016. Regarding the amendment to the Act on the Constitutional
Tribunal the letter notes that according to a preliminary assessment certain
amendments, both individually and taken together, make more difficult the
conditions under which the Constitutional Tribunal may review the
constitutionality of newly passed laws and requests more detailed explanations
on this. The letter also asks for information about other laws which have been
adopted recently and further legislative reforms which are being envisaged.

24. On 9 March 2016 the
Constitutional Tribunal ruled that the Law of 22 December 2015 is
unconstitutional. That judgment has so far not been published in the Official
Journal.

25. On 11 March 2016 the Venice
Commission adopted its opinion "on amendments to the Act of 25 June 2015
on the Constitutional Tribunal"18 . [18 Opinion no. 833/2015,
CDL-AD(2016)001.]

26. On 21 March 2016, Minister of
Foreign Affairs of Poland Mr Waszczykowski wrote to First Vice President
Timmermans inviting him to a meeting in Poland to assess the dialogue carried
out so far between the Polish Government and the Commission and to determine
how to continue it in an impartial, evidence-based and cooperative way.

27. On 31 March 2016 Secretary of
State for European Affairs Mr Szymanski wrote to FVP Timmermans with recent
information and legal assessments regarding the dispute around the
Constitutional Tribunal in Poland. A note was included from Undersecretary of
State Mr Stępkowski "Polish Constitutional Tribunal and the current
controversy around it".

28. On 5 April 2016, meetings
took place in Warsaw between First Vice-President Timmermans and Minister of
Foreign Affairs Mr Waszczykowski, Minister of Justice Mr Ziobro, Deputy Prime
Minister Mr Morawiecki, as well as with the President and the Vice-President of
the Constitutional Tribunal, Mr Rzepliński and Mr Biernat.

29. Following these meetings,
several meetings took place between the Polish Government, represented by the
Ministry of Justice, and the Commission.

30. Following the judgment of 9
March 2016, the Constitutional Tribunal started again adjudicating cases. The
Polish Government did not participate in these proceedings and the judgements
rendered by the Constitutional Tribunal since 9 March 2016 have so far not been
published by the Government in the Official Journal19. [19 Since 9 March 2016
nine judgments have been rendered by the Constitutional Tribunal which have not
been published.]

31. On 6 April 2016 the President
of the Constitutional Tribunal informed the public that he had received a
letter from Minister of Justice Mr Ziobro, dated 5 April 2016, stating inter
alia that the Tribunal is legally required to proceed in accordance with the
provisions of the Law of 22 December 2015, that any attempts by the Tribunal to
act outside the framework of the Constitution and the Law of 22 December 2015
will not be granted legitimacy by any form of participation therein from the
Minister of Justice in his capacity as Prosecutor-General, and that the
Prosecutor-General's role is to monitor the lawfulness of such attempts.

32. On 20 April 2016 a meeting
took place between the Commission and representatives of the Network of
Presidents of Supreme Judicial Courts of the EU and of the Conference of
European Constitutional Courts to discuss about the situation in Poland. The
President of the Network of Presidents, Chief Justice Denham, contributed in
writing to this meeting.

33. On 26 April 2016, the General
Assembly of the Supreme Court of Poland adopted a resolution attesting that the
rulings of the Constitutional Tribunal are valid, even if the Polish Government
refuses to publish them in the Official Journal.

34. On 28-29 April 2016, a
delegation of the Venice Commission visited Warsaw to discuss the recent
amendments to the Law on the Police and certain other laws20, [20 Law of 15
January 2016 amending the Law on Police and other laws, published in Official
Journal on 4 February 2016, item 147.] in view of delivering an opinion on
10-11 June 2016.

35. An expert group was composed
in the Sejm to help prepare a new law on the Constitutional Tribunal. On 29
April 2016 a group of members of the Sejm submitted to the Sejm a legislative
proposal for a new Constitutional Tribunal Act with a view to replacing the
current Act. The proposal contains several provisions which were already
criticised by the Venice Commission in its opinion of 11 March 2016 and
declared unconstitutional by the Tribunal in its ruling of 9 March 2016. This
includes the requirement of a two-thirds majority for adopting decisions for
"abstract" constitutional review of newly adopted laws.

36. On 5 May 2016 the President
of the Constitutional Tribunal Mr Rzepliński informed the public that he had
received a letter from the Minister of Finance of Poland Mr Szałamacha, dated 2
May 2016, calling for restraint in making public statements on the current situation
around the Tribunal until 13 May 2016 as on that date a credit rating agency
would take a decision on its rating for Poland.

37. On 24 May 2016, First
Vice-President Timmermans had meetings in Warsaw with Prime Minister Ms Szydło,
with the President and the Vice President of the Polish Constitutional Tribunal
Mr Rzepliński and Mr Biernat, with the Ombudsman Mr Bodnar, with the Mayor of
the City of Warsaw Ms Gronkiewicz-Waltz and with members of the opposition
parties in the Sejm. On 26 May 2016 First Vice-President Timmermans had a
meeting in Brussels with Deputy Prime Minister Mr Morawiecki. Subsequently,
further exchanges and meetings took place between the Commission and the Polish
government.

38. However, despite the detailed
and constructive nature of the exchanges between the Commission and the Polish
Government, they were not able to resolve the concerns of the Commission.

2) Scope of the opinion

39. The present opinion sets out
the current concerns of the Commission in regard of the rule of law in Poland
concerning the following issues:

·
the appointment of judges of the Constitutional Tribunal and the implementation
of the judgments of the Constitutional Tribunal of 3 and 9 December 2015
relating to these matters 21; [21 The Commission considers the issue of the
shortening of the mandate of the President and the Vice-President of the
Constitutional Tribunal as resolved in view of the judgment of the Tribunal of
9 December 2015 and the clarifications received from the Polish Government.]

·
the Law of 22 December 2015 amending the Law on the Constitutional Tribunal,
the judgment of the Constitutional Tribunal of 9 March 2016 relating to this
law, as well as the respect of the judgments rendered by the Constitutional
Tribunal since 9 March 2016;

·
the effectiveness of Constitutional review of new legislation, in particular
the new media law, and certain other laws which have been adopted and enacted
in 2016.

3) Appointment of judges of the
Constitutional Tribunal

I. The Facts

40. Ahead of the general
elections for the Sejm of 25 October 2015, on 8 October the outgoing
legislature nominated five persons to be 'appointed' as judges of the
Constitutional Tribunal by the President of the Republic. Three judges would
take seats vacated during the mandate of the outgoing legislature while two
would take seats vacated during that of the incoming legislature which
commenced on 12 November 2015.

41. On 19 November 2015, the new
legislature, through an accelerated procedure, amended the Law on the
Constitutional Tribunal, introducing the possibility to annul the judicial
nominations made by the previous legislature and to nominate five new judges.
The amendment also shortened the terms of office of the President and
Vice-President of the Tribunal from nine to three years, with the current terms
coming to an automatic end 2 within three months of the amendment's adoption.
On 25 November 2015 the new legislature passed a motion annulling the five
nominations by the previous legislature and on 2 December nominated five new
judges.

42. The Constitutional Tribunal
was seized concerning the decisions of both the previous legislature and the
incoming legislature. The Tribunal delivered two judgements, on 3 and 9
December 2015.

43. In its judgment of 3
December22, [22 K 34/15] the Constitutional Tribunal ruled inter alia that the
previous legislature of the Sejm was entitled to nominate three judges
replacing the judges whose terms expired on 6 November 2015. At the same time,
the Tribunal clarified that the Sejm had not been entitled to elect the judges
replacing those whose term expired in December. The judgment also specifically
referred to the obligation for the President of the Republic to immediately
take the oath from a judge elected by the Sejm.

44. On 9 December23, [23 K 35/15.]
the Constitutional Tribunal inter alia invalidated the legal basis for the
nominations by the new legislature of the Sejm of the three judges for the
vacancies opened up on 6 November 2015 for which the previous legislature had
already lawfully nominated judges. In this judgment the Constitutional Tribunal
also considered that a reduction of the duration of the mandate of the
President and Vice-President from nine to three years was constitutional only
in so far as the reduction applied to future mandates and as long as a renewal
of the mandate would not be possible.

45. Despite these judgments, the
three judges that have been nominated by the previous legislature have not
taken up their function of judge in the Constitutional Tribunal and their oath
has not yet been taken by the President of the Republic. Conversely, the oath of
the three judges nominated by the new legislature without a valid legal basis
has been taken by the President of the Republic.

46. The two judges elected by the
new legislature replacing the two judges outgoing in December 2015, Ms
Przyłębska and Mr Pszczółkowski, have in the meantime taken up their function
of judge in the Constitutional Tribunal.

47. On 28 April 2016 the
President of the Republic took the oath of Mr Jędrzejewski who had been
nominated by the new legislature earlier that month to replace Mr Granat whose
term as judge in the Constitutional Tribunal had ended.

II. Assessment

Appointment of judges of the
Constitutional Tribunal

48. The Commission considers that
the binding and final judgments of the Constitutional Tribunal of 3 and 9
December 2015 as far as the appointment of judges is concerned have still not
been implemented. These judgments require that the State institutions of Poland
cooperate loyally in order to ensure, in accordance with the rule of law, that
the three judges that have been nominated by the previous legislature of the
Sejm can take up their function of judge in the Constitutional Tribunal, and
that the three judges nominated by the new legislature without a valid legal
basis do not take up this function. The fact that these judgments have not been
implemented raises serious concerns in regard of the rule of law, as compliance
with final judgments is an essential requirement inherent in the rule of law.

49. In the exchange of letters
the Polish Government referred to the existence of a constitutional custom in
Poland regarding the nomination of judges which would justify the position
taken by the new legislature of the Sejm. The Commission notes however, as did
the Venice Commission24, [24 Opinion, para 112.] that it is for the
Constitutional Tribunal to interpret and apply the national constitutional law
and custom, and that the Constitutional Tribunal did not refer to such a custom
in its judgments. The judgment of 3 December which has validated the legal
basis for the nominations of the three judges by the previous Sejm for the
posts which became vacant on 6 November cannot be overturned by invoking a
supposed constitutional custom which the Tribunal did not recognize.

50. Also, limiting the impact of
these judgments to a mere obligation for the Government to publish them, as put
forward by the Polish authorities, would deny any legal and operational effect
of the judgments of 3 and 9 December. In particular, it denies the obligation
of the President of the Republic to take the oath of the judges in question,
which has been confirmed by the Constitutional Tribunal.

51. Finally, the Commission notes
that also the Venice Commission considers that a solution to the current
conflict over the composition of the Constitutional Tribunal "must be
based on the obligation to respect and fully implement the judgments of the
Constitutional Tribunal" and "therefore calls on all State organs and
notably the Sejm to fully respect and implement the judgments"25. [25
Opinion, para 136.]

Conclusion

52. In view of the above the
Commission considers that the Polish authorities should respect and fully
implement the judgments of the Constitutional Tribunal of 3 and 9 December
2015. These judgments require that the State institutions cooperate loyally in
order to ensure, in accordance with the rule of law, that the three judges that
have been nominated by the previous legislature can take up their function of
judge in the Constitutional Tribunal, and that the three judges nominated by
the new legislature without a valid legal basis do not take up the post of
judge without being validly elected.

4) Amendment of 22 December 2015
to the Law on the Constitutional Tribunal

I. The Facts

53. On 22 December 2015, following
an accelerated procedure, the Sejm amended the Law on the Constitutional
Tribunal26. [26 Law of 25 June 2015 on the Constitutional Tribunal, published
in Official Journal on 30 July 2015, item 1064, as amended. The Law of 22
December 2015 was published in the Official Journal on 28 December; item 2217.]
The amendments inter alia increased the attendance quorum of judges for hearing
cases27, [27 See Article 1(9) new, replacing Article 44(1-3).] raised the
majorities needed in the Constitutional Tribunal to hand down judgments in full
configuration28, [28 See Article 1(14) new, replacing Article 99(1).] required
the handling of cases in chronological order29 [29 See Article 1(10) new,
inserting a new Article 80(2).] and provided a minimum delay for hearings30. [30
See Article 1(12) new, replacing Article 87(2).] Certain amendments31 [31 See
Article 1(5) new, inserting a new Article 28a and Article 1(7) new, inserting a
new Article 31a.] increased the involvement of other institutions of the State
in disciplinary proceedings concerning judges of the Tribunal. These amendments
are set out in more detail below.

Attendance quorum

54. The amended Article 44(3)
states that "Adjudicating in full bench shall require the participation of
at least 13 judges of the Court". 32 [32 This new attendance quorum also
applies for resolutions of the General Assembly, unless otherwise provided in
the Law, see Article 1(3) new, amending Article 10(1).] According to the
amended Article 44(1) under 1) the Constitutional Tribunal shall rule sitting
in its full configuration, unless otherwise specified by law. This applies in
particular to what are described as "abstract cases" of
constitutional review of newly adopted laws. The amended Article 44(1) under 2)
and 3) provides for exceptions, notably for individual complaints or cases
submitted by ordinary courts. The former version of the Law required, for a
decision by the full bench, the presence of at least nine judges (Article 44
(3), item 3 of the Law before the amendment).

Voting majority

55. According to the amended
Article 99(1), judgments of the Constitutional Tribunal sitting as a full bench
(for "abstract cases") require a majority of two-thirds of the judges
sitting. With a view to the new (higher) attendance quorum (see above) this
means that a judgment must be approved by at least nine judges if the
Constitutional Tribunal adjudicates as a full bench33. [33 According to the
amendment, the same rules - attendance quorum and a two-third majority of votes
- also apply to the General Assembly of the Court.] Only if the Tribunal
adjudicates in a panel of seven or three judges (individual complaints and
preliminary requests from ordinary courts), a simple majority of votes is
required. The former version of the Law required, for a decision by the full
bench, a simple majority of votes (Article 99(1) of the Law before the amendment).

Handling of cases in
chronological order

56. According to amended Article
80(2)34, [34 See Article 1(10) new, inserting a new Article 80(2).] the dates
for hearings or proceedings in camera, where applications in abstract
constitutional review proceedings are considered, "shall be established by
order in which the cases are submitted to the Court". There are no
exceptions foreseen to this rule and according to the amendment this rule
applies to all pending cases for which no date for a hearing has been set
yet35. [35 See Article 2 new.] The former version of the Law did not include
such rule.

Minimum delay for hearings

57. According to amended Article
87(2)36, [36 See Article 1(12) new.] ”[t]he hearing may not take place earlier
than after three months from the day the notification on the date of the
hearing has been delivered to the participants of the proceedings, and for
cases adjudicated in full bench – after six months”. The former version of the
Law stated that the hearing cannot be held earlier than after 14 days from the
delivery date of the notification of its date to participants of the
proceedings.

Disciplinary proceedings

58. According to amended Article
28a37, [37 See Article 1(5) new.] “[d]isciplinary proceedings may also be instituted
further to an application from the President of the Republic of Poland or the
Minister for Justice no later than three weeks after the date of receipt of the
application, unless the President of the Court decides that the application is
unfounded.” Furthermore, according to the new Article 31a(1) of the Law38 [38
See Article 1(7) new.] “[i]n particularly gross cases, the General Assembly
shall apply to the Sejm to depose the judge of the Court.” This action of the
General Assembly could be initiated by an application by the President of the
Republic or the Minister of Justice pursuant to Article 31a(2) new, although
the Constitutional Tribunal remains free to decide. The final decision will be
taken by the Sejm. According to the former version of the Law the Executive
branch was not entitled to institute disciplinary proceedings and the Sejm was
not granted the power to depose a judge of the Court. The Constitutional
Tribunal itself had the power to depose of a judge of the Tribunal.

Judgment of 9 March 2016 of the
Constitutional Tribunal

59. In its judgment of 9 March
2016, the Constitutional Tribunal declared unconstitutional the Law of 22
December 2015 in its entirety as well as specific provisions thereof, in
particular those referred to above. So far the Polish authorities have failed
to publish the judgment in the Official Journal. The Polish Government contests
the legality of the judgment, as the Constitutional Tribunal did not apply the
procedure foreseen by the Law of 22 December 2015. The same position is taken
by the Government towards the judgments rendered by the Tribunal after 9 March
2016.

II. Assessment

60. As set out in more detail
below, the Commission takes the view that the effect of the amendments
concerning the attendance quorum, the voting majority, the handling of cases in
chronological order and the minimum delay for hearings, in particular their
combined effect, undermine the effectiveness of the Constitutional Tribunal as
a guarantor of the Constitution.

Attendance quorum

61. The Commission considers that
the attendance quorum of 13 out of 15 Judges for the full configuration of the
Constitutional Tribunal (which deals with the "abstract" constitutional
review of newly adopted laws) represents a serious constraint on the
decision-making process of the Constitutional Tribunal, with the risk of
blocking it. The Commission notes, as confirmed by the Venice Commission, that
an attendance quorum of 13 out of 15 judges is unusually high compared to
requirements in other Member States. It is indeed entirely imaginable that for
various reasons, such an attendance quorum might on occasion not be reached,
which would then leave the Tribunal at least temporarily unable to adjudicate.
In fact, such a situation would be present in the current circumstances, as the
Tribunal has only 12 judges at this stage.

62. The impact of this
requirement on the functioning of the Constitutional Tribunal must be assessed
within the context of other provisions, notably by taking into account its
combination effect with other requirements as amended.

Voting majority

63. In addition to the increased
attendance quorum, a two-third majority for adopting decisions (for
"abstract" constitutional review of newly adopted laws) significantly
aggravates the constraints on the decision-making process of the Constitutional
Tribunal. The Commission notes, as also confirmed by the Venice Commission,
that in the vast majority of European legal systems, only a simple voting
majority is required. In any event, the Constitutional Tribunal found that the
Polish Constitution prescribed voting by simple majority, and that the
requirement of a qualified majority was thus unconstitutional.

Handling of cases in
chronological order

64. The "sequence rule”
according to which the Constitutional Tribunal must hear cases in the sequence
in which they have been registered negatively affects the capacity to render
rapidly decisions on the constitutionality of new laws, in particular in view
of the current number of pending cases. The impossibility to take into account
the nature of a case (in particular when involving fundamental rights issues),
its importance and the context in which it is presented, can prevent the
Constitutional Tribunal from meeting the requirements for a reasonable length
of proceedings as enshrined in Article 6 of the European Convention on Human
Rights and Article 47 of the EU Charter of Fundamental Rights. As also noted by
the Venice Commission, the sequencing rule may also discourage the putting of
preliminary ruling questions to the Court of Justice, particularly if a hearing
is required after the preliminary ruling has been received.

Minimum delay for hearings

65. Finally, this issue is to be
seen in combination with the requirement concerning the scheduling of cases, in
particular the minimum delay for hearings (participants of the proceedings must
be notified of a hearing before the Constitutional Tribunal at least three -
and in important cases six - months before the date of the hearing) risks
slowing down proceedings unnecessarily. As set out above, the absence of a
general provision that would allow the Constitutional Tribunal to reduce these
deadlines in urgent cases is incompatible with the requirements for a
reasonable length of proceedings under Article 6 of the European Convention
on Human Rights and Article 47 of the EU Charter of Fundamental Rights.

Overall findings on procedural
issues

66. As an overall conclusion the
Commission considers that the combined impact of these provisions on the
effectiveness of the constitutional review is a matter of concern in regard of
the rule of law, as it prevents the Constitutional Tribunal from fully ensuring
an effective constitutional review and fulfilling its function as a safeguard
mechanism established at national level to secure the rule of law. This
conclusion is shared by the Venice Commission.

Disciplinary proceedings

67. The Commission also notes
with concern the fact that certain amendments increase the involvement of other
institutions of the State in disciplinary proceedings concerning judges of the
Tribunal. In particular, the President of the Republic or the Minister of
Justice have been given the power to initiate disciplinary proceedings against
a Constitutional Tribunal judge39 [39 See Article 1(5) new, inserting a new
Article 28a.] and, in particularly serious cases, it is for the Sejm to take
the final decision on the dismissal of a judge following a request to that
effect by the Constitutional Tribunal40 . [40 See Article 1(7) new, inserting a
new Article 31a.]

68. The Commission considers that
the fact that a political body decides on (and hence may refuse to impose) a
disciplinary sanction as proposed by the Constitutional Tribunal may pose a
problem regarding independence of the judiciary, as the Parliament (as a
political body) is likely to also decide on the basis of political
considerations. Similarly it is not clear why political institutions such as
the President of the Republic and the Minister of Justice should have the power
to initiate disciplinary proceedings. Even if such proceedings require approval
by the Tribunal or its President, already the fact that they may be initiated
by political institutions may have an impact on the independence of the
Tribunal. This raises concerns as regards the separation of powers and the
independence of the Constitutional Tribunal as the proposal of the Tribunal to
dismiss a judge could be rejected by the Sejm.

Lack of implementation of the
judgment of 9 March 2016

69. The Constitutional Tribunal
ruled in its judgment of 9 March that the amendments of the Law of 22 December
2015 referred to in this section are unconstitutional.

70. The Commission notes that the
Polish Government contests the legality of the judgment, as the Constitutional
Tribunal did not apply the procedure foreseen by the Law of 22 December 2015.
For this reason the Polish authorities have not published the judgment in the
Official Journal.

71. The Commission considers that
the Constitutional Tribunal was correct not to apply the procedure foreseen by
the Law of 22 December 2015. In that respect the Commission agrees with the
Venice Commission, which states on this point that "a simple legislative
act, which threatens to disable constitutional control, must itself be
evaluated for constitutionality before it can be applied by the Court. […] The
very idea of the supremacy of the Constitution implies that such a law, which
allegedly endangers constitutional justice, must be controlled – and if need
be, annulled – by the Constitutional Tribunal before it enters into
force".41 [41 Opinion, para 41.] The Commission furthermore underlines
that as the Constitutional Tribunal is currently composed of 12 judges only, it
could otherwise not have reviewed the constitutionality of the amendments of 22
December 2015 as requested by the First President of the Supreme Court, the
Ombudsman and the National Council of the Judiciary. This would have been
contrary to the Polish Constitution which has tasked the Constitutional
Tribunal with the role of ensuring constitutional review. Similarly, the
Tribunal could not have decided on the constitutionality of the qualified
majority requirement while voting in accordance with the very requirement the constitutionality
of which it was examining.

72. The refusal of the Government
to publish the judgment of the Constitutional Tribunal of 9 March raises
serious concerns in regard of the rule of law, as compliance with final
judgments is an essential requirement inherent in the rule of law. In
particular, where the publication of a judgment is a prerequisite for its
taking effect and where such publication is incumbent on a State authority
other than the court which has rendered the judgment, an ex post control by
that State authority regarding the legality of the judgment is incompatible
with the rule of law. The refusal to publish the judgment denies the legal and
operational effect of a binding and final judgment, and breaches the principles
of legality and separation of powers.

73. The refusal to publish the
judgment of 9 March creates a level of uncertainty and controversy which will
adversely affect not only the present judgment, but all future judgments of the
Tribunal. Since these judgments will, following the judgment of 9 March, be
rendered in accordance with the rules applicable before 22 December 2015, the
risk of a continuous controversy about every future judgment will undermine the
proper functioning of constitutional justice in Poland. This risk has already
materialized as the Tribunal has to date rendered nine rulings since its ruling
of 9 March 2016, and none of these rulings have been published in the Official
Journal.

Conclusion

74. In view of the above, the
Commission takes the view that the effect of the amendments, in particular
their combined effect, undermines the effectiveness of the Constitutional
Tribunal as a guarantor of the Constitution. The Commission also notes with
concern the fact that certain amendments increase the involvement of other
institutions of the State in disciplinary proceedings concerning judges of the
Tribunal, raising concerns as regards the separation of powers and the
independence and integrity of the Constitutional Tribunal.

75. The Commission notes that the
amendments have been declared unconstitutional by the Constitutional Tribunal
in its judgment of 9 March 2016. However, the fact that the Polish Government
has so far refused to publish the judgment of the Constitutional Tribunal in the
Official Journal, creates uncertainty about the legal effect of the judgment
and hence on the legal basis on which the Tribunal must act. This uncertainty
undermines the effectiveness of constitutional review and raises serious
concerns in regard of the rule of law.

76. This legal uncertainty has
already manifested itself in the fact that the further judgments rendered by
the Constitutional Tribunal have not been published, and are not recognised by
the Government. This situation of non-recognition of judgments of the
Constitutional Tribunal is liable to create profound legal uncertainty in the
Polish legal system across a wide range of areas.

77. Refusing to publish and to
act upon the judgment of the Constitutional Tribunal of 9 March 2016, as well
as all the judgments of the Tribunal rendered subsequently, falls short of the
required respect for the Tribunal as the guarantor of the Constitution, and is
not compatible with the rule of law.

5) Effectiveness of
Constitutional review of new legislation - Media law and other laws

I. The Facts

78. A number of particularly
sensitive new legislative acts have been adopted by the Sejm, often through
accelerated legislative procedures, such as, in particular, a media law42, [42
Law of 30 December 2015 amending the Broadcasting Law, published in Official
Journal on 7 January 2016, item 25.] a new Civil Service Act43, [43 Law of 30
December 2015 amending the Law on Civil Service and certain other acts,
published in Official Journal on 8 January 2016, item 34.] a law amending the
law on the Police and certain other laws44 [44 Law of 15 January 2016 amending
the Law on Police and other laws, published in Official Journal on 4 February
2016, item 147.] and laws on the Public Prosecution Service45, [45 Law of 28
January 2016 on the Prosecutor's Office, published in Official Journal on 15
February 2016, item 177; Law of 28 January 2016 - Regulations implementing the
Act - Law on the Prosecutor's Office, published in Official Journal on 15
February 2016, item 178.] and a new law on the Ombudsman and amending certain
other laws46. [46 Law of 18 March 2016 on the Ombudsman and amending certain
other laws. The law was signed by the President of the Republic on 4 May 2016.]
The Commission has asked the Polish Government about the state of play and
content of these legislative reforms in its letters of 1 February 2016 and 3
March 2016, but so far this information has not been provided. Furthermore, a
number of other sensitive draft legislative acts have been submitted to the
Sejm, such as drafts for a new media law47 [47 Draft legislation submitted to
the Sejm on 25 April 2016.] and a new anti-terrorism law48. [48 Draft
legislation submitted to the Sejm on 11 May 2016. The Commission is furthermore
aware that a new law amending the Law on the National Judicial Council and
certain other laws has been submitted on 5 May 2016 by the Minister of Justice
to the National Legislative Centre.]

II. Assessment

79. The Commission considers that
as long as the Constitutional Tribunal is prevented from fully ensuring an
effective constitutional review, there will be no effective scrutiny of
compliance with the Constitution, including fundamental rights, of legislative
acts such as those referred to above. The Commission notes for example that new
legislation (such as the media law49) [49 Law of 30 December 2015 amending the
Broadcasting Law, published in Official Journal on 7 January 2016, item 25.]
raises concerns relating to freedom and pluralism of the media. More
specifically, the new media law modifies the rules for the appointment of the
Management and Supervisory Boards of the public service broadcasters, putting
them under the control of the Treasury Minister, rather than an independent
body. The new law also provides for the immediate dismissal of the existing
Supervisory and Management Boards. In that respect the Commission questions in
particular the possibilities of judicial redress for the persons affected by
the law.

81. Legislation such as the new
Civil Service Act50 [50 Law of 30 December 2015 amending the Law on Civil
Service and certain other acts, published in Official Journal on 8 January
2016, item 34.] is equally important from the perspective of the rule of law
and fundamental rights. In that respect the Commission has asked to Polish
Government about the possibilities of judicial redress for the persons affected
by the law in its letters of 1 February and 3 March 201651. [51 Letter of 1
February 2016 from First Vice President Timmermans to Minister of Justice Mr
Ziobro; Letter of 3 March 2016 from First Vice President Timmermans to Minister
of Foreign Affairs Mr Waszczykowski.] The Polish Government has so far not
replied to the Commission on this point.

82. Also the Law on the Public
Prosecution Service52 [52 Law of 28 January 2016 on the Prosecutor’s Office,
published in Official Journal on 15 February 2016, item 177; Law of 28 January
2016 – Regulations implementing the Act – Law on the Prosecutor’s Office,
published in Official Journal on 15 February 2016, item 178.] is important from
the perspective of the rule of law and fundamental rights, and requires a fully
effective constitutional review, including in individual cases.

83. The law amending the law on
the Police and certain other laws53 [53 Law of 15 January 2016 amending the Law
on Police and other laws, published in Official Journal on 4 February 2016,
item 147.] may also raise questions relating to its compliance with fundamental
rights, including privacy and data protection. On 28-29 April 2016, a
delegation of the Venice Commission visited Warsaw to discuss the amendments to
the Law on the Police and certain other laws, with a view to delivering an
opinion on 10-11 June 2016.

Conclusion

84. The Commission considers that
as long as the Constitutional Tribunal is prevented from fully ensuring an
effective constitutional review, there will be no effective scrutiny of compliance
with fundamental rights of legislative acts. This raises serious concerns in
regard of the rule of law, notably as a number of particularly sensitive new
legislative acts have been adopted recently by the Sejm for which
constitutional review should be available.

6) Conclusion

85. For the reasons set out above
the Commission is of the opinion that there is a situation of a systemic threat
to the rule of law in Poland. The fact that the Constitutional Tribunal is
prevented from fully ensuring an effective constitutional review adversely
affects its integrity, stability and proper functioning, which is one of the
essential safeguards of the rule of law established in Poland. Where a
constitutional justice system has been established, its effectiveness is a key
component of the rule of law.

86. Respect for the rule of law
is not only a prerequisite for the protection of all fundamental values listed
in Article 2 of the Treaty on European Union. It is also a prerequisite for
upholding all rights and obligations deriving from the Treaties and from
international law, and for establishing mutual trust of all EU citizens and
national authorities in the legal systems of all other Member States.

87. The Commission is of the
opinion that this threat to the rule of law must be addressed as a matter of
urgency. The Polish authorities should respect and fully implement the
judgments of the Constitutional Tribunal of 3 and 9 December 2015 concerning
the appointment of judges. This means in particular that the President should
take the oath of the three judges that have been nominated by the previous
legislature.

88. Moreover, it is necessary
that the Polish authorities respect and publish the judgment of the
Constitutional Tribunal of 9 March 2016 concerning the rules on the functioning
of the Constitutional Tribunal. They should also publish and comply with all
judgments that have been rendered by the Constitutional Tribunal since 9 March
or will be rendered in the future.

89. More generally, the
Commission underlines that the loyal cooperation which is required amongst the
different state institutions in rule of law related matters is essential in
order to find a solution in the present situation. This includes that all
Polish authorities refrain from actions and public statements which could
undermine the legitimacy and efficiency of the Constitutional Tribunal.

90. The Commission invites the
Polish Government to submit its observations on the foregoing within two weeks
of receipt of this opinion. On the basis of these observations, the Commission
stands ready to pursue the constructive dialogue with the Polish government
with a view to finding solutions to the concerns set out in this opinion. If
the concerns have not been satisfactorily resolved within a reasonable time,
the Commission may issue a recommendation.